J-S39045-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

FARNCISCO P. FRANKLIN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3242 EDA 2019

Appeal from the Judgment of Sentence Entered October 8, 2019

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0004749-2018

BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 8, 2020

Farncisco P. Franklin (Franklin) appeals from the judgment of sentence 

imposed by the Court of Common Pleas of Philadelphia County (trial court). 

On appeal, he challenges the discretionary aspects of the trial court’s

sentence. After review, we affirm.

I.

On June 7, 2019, Franklin entered an open guilty plea to third-degree 

murder and possessing an instrument of crime.1 At the guilty plea hearing, 

the Commonwealth provided the following underlying facts:

On January 27, 2018, at approximately 10:55 in the evening, 

police officers from the 22nd Police District and Temple University 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2502(c), 907(a).
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responded to 2034 North Gratz Street in [Philadelphia]. Upon 

arrival, they observed the decedent, William Elliot, who was 25 at 

the time, suffering a stab wound to the chest. He was transported 

to Temple University Hospital but succumbed to his injury. He 

was pronounced at 11:15 p.m. by Dr. Beard.

A postmortem examination was conducted by Dr. Daniel Brown in 

the office of the medical examiner. Dr. Brown conducted the 

autopsy and determined that Mr. Elliot suffered a single stab 

wound to the chest that penetrated 3 to 4 inches, traveling 

through his right pectoralis, his right anterior third rib and upper 

lobe of his lung. The doctor measured more than 2,000 milliliters 

of blood had entered Mr. Elliot’s lung.

Dr. Brown determined that the cause of death was a stab wound 

to the chest and the manner of death was homicide.

Homicide investigators interviewed a number of witnesses 

concerning the death of Mr. Elliot. One witness, Tyrik Barnes, 

indicated that he was at a repass with [Franklin] at the location of 

2013 North Gratz Street mourning the loss of a family member. 

When he went outside, he observed an argument between the 

white males and [Franklin, who was intoxicated]. The young men 

had been yelling, “[F---] Tom Brady” and there was a response.

Mr. Barnes broke up the argument and observed the males walk

north on Gratz Street with [Franklin] behind them. Mr. Barnes 

observed [Franklin] and another white male, [Mr. Elliot], face-toface arguing at the corner. At that point, [Barnes] instructed his 

girlfriend to leave and he saw [Franklin] run to his minivan and 

drive off.

Another witness, Alexander Clark, was friends with Mr. Elliot. He 

indicated that [Mr. Elliot] and [the] group were yelling “[F---] Tom 

Brady” as they passed a car with a funeral sticker on it[.]

At the time . . . [Franklin] was alone outside when this all took 

place. Mr. Clark indicated that there was an argument between 

[Franklin] and the group. [Franklin] and [Mr. Elliot] argued back 

and forth. Mr. Clark then walked north on Gratz, approximately 

20 feet ahead of [Mr. Elliot]. When he turned around at the 

corner, he noticed that [Franklin] and [Mr. Elliot] were face-toface and [Franklin] was being extra aggressive. [Franklin] made 
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a sideways swinging motion and he saw Mr. Elliot grab his chest 

and fall to the ground.

[Mr. Elliot’s] brother was also interviewed. He told detectives that

they were walking down Gratz Street. And all of the guys started 

yelling “[F---] Tom Brady.” [Franklin] yelled at them to stop 

yelling; that his cousin had just died. Then [Mr. Elliot] yelled 

something in response and an argument ensued.

They continued to walk, and when [Mr. Elliot] was at the corner 

of Fontain and Gratz Street, [Mr. Elliot’s] brother observed 

[Franklin] and [Mr. Elliot] facing each other. He then saw [Mr. 

Elliot] grab his chest and fall to the ground.

N.T. 6/7/2019, at 16-20.

At the September 6, 2019 sentencing hearing, the trial court reviewed 

the presentence investigation report and mental health examination, both of 

which the trial court ordered after accepting the plea. In particular, the trial 

court reviewed Franklin’s criminal history, noting that he was a five on the 

prior record score scale and had been convicted of multiple firearms offenses 

that resulted in county sentences followed by multiple violations of probation 

and parole. Franklin was sentenced to state prison for his most recent 

conviction and was on state parole at the time of his current offense. Besides 

his criminal history, the trial court also reviewed Franklin’s personal history, 

observing that he had lost both of his parents at a young age and was raised 

by his grandmother. Franklin began to struggle with substance abuse 

beginning at age 15 and had continued to do so through the years. According 

to the mental health examination, Franklin had an alcohol and mixed 

substance abuse disorder, but no mental diagnosis.
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The trial court then heard from multiple family members and friends of 

the victim, as well as viewing video surveillance of the offense. Likewise, 

Franklin presented a number of witnesses to speak on his behalf and speak to 

the effect that his upbringing had on him, including his struggles with 

substance abuse. Franklin also presented 35 character letters of support and 

a report prepared by a mitigation specialist. Finally, Franklin exercised his 

right to allocution, expressing his remorse for stabbing and killing the victim.

After hearing from both sides, the trial court imposed a sentence of 20 

to 40 years’ imprisonment for third-degree murder and no further penalty for 

possessing an instrument of crime. Despite finding Franklin’s remorse sincere, 

the trial court provided the following explanation for its sentence:

You have had opportunity after opportunity after opportunity to 

change. The system, as imperfect as it was and is and will 

continue to be, has attempted to offer you assistance and 

guidance in every step, first as a juvenile, then in a specific 

program to give you or to meet your needs as a young man.

You almost closed your allocution with a thought about how a 17-

year-old cannot make a mistake that a 37-year-old man does, but

a 37-year-old man can make a mistake that a 17-year-old man 

does.

My sentence, so it’s clear, would be different if you were 17 or 18 

or 21 or 25, but you were 34, 34 at this time.

I look out in this courtroom, and while you have had loss in your 

life, I see support, I see love, and I see people who are in this 

courtroom not just today on your behalf, but who have been there 

for you, so unlike many other defendants that I see in this 

courtroom. You have loved and you have been loved in spite of 

your losses.
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I looked at that video. I wanted to see that video because too 

often -- not too often, but most of the time I see cases through 

different color lenses. And by that I mean I have an eyewitness 

who views it one way, a loved one of the decedent, in this case 

Billy’s family or friends who would see the incident differently. I 

may sometimes hear from a defendant’s family, and I could have 

heard, if this had gone to trial, from someone that was a loved 

one of you from their lens. But in this case, the camera doesn't 

lie. And what the camera showed me is, yes, you were emotional, 

but what also the camera showed me is you were already armed. 

You didn’t go in the house and get a knife. You were already 

armed. And I saw you take that out and I saw you hide that, and 

I saw someone try to stop you, and I also saw no reason, no 

justification for what you did.

You may not think that I’m giving you mitigation, but I am.

N.T., 9/16/19, at 151-52.

Franklin filed a post-sentence motion for reconsideration in light of the 

substantial mitigating factors presented at sentencing. These included: (1) 

Franklin’s acceptance of responsibility by pleading guilty; (2) his mental state 

at the time of the offense; (3) his background; (4) his positive progress after 

being released from state prison in 2015; (5) his positive impact on others; 

and (6) his remorse. On October 8, 2019, the trial court held a hearing on 

the motion and, after hearing from counsel on the mitigation evidence, 

reduced Franklin’s sentence to 19 to 40 years’ imprisonment. Franklin timely 

appealed and now argues that the trial court gave an unduly harsh sentence 

by failing to adequately consider his substantial mitigating evidence.

II.

Franklin’s sole issue challenges the discretionary aspects of sentence. 

“The right to appellate review of the discretionary aspects of a sentence is not 
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absolute, and must be considered a petition for permission to appeal.” 

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).

Before [this Court may] reach the merits of [a challenge to

the discretionary aspects of a sentence], we must engage in a four

part analysis to determine: (1) whether the appeal is timely; (2)

whether Appellant preserved his issue; (3) whether Appellant’s

brief includes a concise statement of the reasons relied upon for

allowance of appeal with respect to the discretionary aspects of

sentence [see Pa.R.A.P. 2119(f) ]; and (4) whether the concise

statement raises a substantial question that the sentence is

appropriate under the sentencing code. . . . [I]f the appeal

satisfies each of these four requirements we will then proceed to

decide the substantive merits of the case.

Commonwealth v. Giordano, 121 A.3d 998, 1007-08 (Pa. Super. 2015),

appeal denied, 131 A.3d 490 (Pa. 2016) (citation omitted; brackets in

original).

Franklin filed a timely appeal and preserved his issue in a timely postsentence motion. He has also included a statement of reasons relied upon for 

his challenge to the discretionary aspects of his sentence as required by 

Pa.R.A.P. 2119(f). Further, Franklin contends that the trial court imposed an 

excessive sentence and erred by not adequately considering his mitigating 

factors. “[T]his Court has held that an excessive sentence claim—in 

conjunction with an assertion that the court failed to consider mitigating 
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factors—raises a substantial question.” Commonwealth v. Raven, 97 A.3d

1244, 1253 (Pa. Super. 2014). Thus, we consider the merits of his claim.2

In reviewing the record, we consider:

(1) The nature and circumstances of the offense and the history 

and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

“A sentencing court need not undertake a lengthy discourse for its 

reasons for imposing a sentence or specifically reference the statute in 

question, but the record as a whole must reflect the sentencing court’s 

consideration of the facts of the crime and character of the offender.”

Commonwealth v. Rush, 162 A.3d 530, 544 (Pa. Super. 2017) (citation 

omitted). Further, where there is a pre-sentence investigation, “we shall ... 

presume that the sentencing judge was aware of relevant information 

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2 “Sentencing is a matter vested in the sound discretion of the sentencing 

judge, and a sentence will not be disturbed on appeal absent a manifest abuse 

of discretion. In this context, an abuse of discretion is not shown merely by 

an error in judgment. Rather, the appellant must establish, by reference to 

the record, that the sentencing court ignored or misapplied the law, exercised 

its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a 

manifestly unreasonable decision.” Commonwealth v. Gonzalez, 109 A.3d 

711, 731 (Pa. Super. 2015) (quotation omitted).
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regarding the defendant’s character and weighed those considerations along 

with mitigating statutory factors.” Commonwealth v. Conte, 198 A.3d

1169, 1177 (Pa. Super. 2018) (citation omitted).

Additionally, Franklin was sentenced within the guidelines.3 Where a

sentence is imposed within the guidelines, we may only reverse the trial court 

if we find that the circumstances of the case rendered the application of the 

guidelines “clearly unreasonable.” 42 Pa.C.S. § 9781(c)(2). Our review of 

the reasonableness is based upon the factors contained in 42 Pa.C.S.

§ 9781(d) and the trial court’s consideration of the general sentencing

standards contained in 42 Pa.C.S. § 9721(b).

4

 Commonwealth v. Baker,

72 A.3d 652, 663 (Pa. Super. 2013). However, “[w]e cannot re-weigh the

sentencing factors and impose our judgment in the place of the sentencing

court.” Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009)

(citation omitted).

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3 Because he was a five on the prior record score scale, and third-degree 

murder has an offense gravity score of 14, Franklin’s standard range 

guidelines, with the deadly weapon used enhancement applied, were 210 

months to the statutory limit. See 204 Pa. Code. § 303.17(b) (Deadly Weapon 

Enhancement/Used Matrix).

4

In imposing it sentence, “the court shall follow the general principle that the 

sentence imposed should call for total confinement that is consistent with 

section 9725 (relating to total confinement) and the protection of the public, 

the gravity of the offense as it relates to the impact on the life of the victim 

and on the community, and the rehabilitative needs of the defendant.” 

42 Pa.C.S. § 9721(b).
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Franklin believes the trial court failed to adequately consider his 

rehabilitative needs, resulting in an excessive sentence that did not properly 

account for his genuine remorse and substance abuse problems. Franklin’s 

Brief at 12-13. This argument, however, is belied by the record. At 

sentencing, the trial court spent considerable time in reviewing Franklin’s 

presentence investigation and mental health examination, making sure to 

confirm that it had his full background. As quoted above, the trial court 

acknowledged and credited all of Franklin’s mitigating evidence, including the 

support of his character witnesses who appeared at his sentencing.

This support, however, did not require the trial court to ignore the 

gravity of the offense. Franklin was armed with a knife and got into a heated 

argument with a group of strangers. Then, after the argument abated and

the victim walked away, Franklin pursued and stabbed the victim without any 

apparent justification. Franklin, who was on state parole, then fled the scene 

and was not arrested until several months later.

Additionally, as the trial court noted, Franklin has a substantial criminal 

record, amassing enough convictions to place him as a five on the prior record 

score scale. As summarized in the presentence investigation, Franklin was 

given multiple opportunities on county supervision before finally being 

sentenced to state prison. Based on this history, the trial court simply 

concluded that Franklin had a low potential for rehabilitation, especially since 

his most recent offense involved the homicide of a stranger while he was still 
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on state parole. Accordingly, based on our review of the record, it is clear 

that the trial court did not abuse it discretion in imposing a sentence of 19 to 

40 years’ imprisonment for third-degree homicide.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/08/2020